Director of Public Prosecutions v SM
[2018] VCC 294
•13 November 2017 12 February 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case Nos. CR-17-00013
CR-17-00014
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SM |
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JUDGE: | HIS HONOUR JUDGE TAFT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
| DATE OF SENTENCE: REASONS FOR SENTENCE: | 13 November 2017 12 February 2018 | |
CASE MAY BE CITED AS: | DPP v SM | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 286 | |
REASONS FOR SENTENCE
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Subject:
Catchwords: Resisting emergency worker whilst on duty – fitness – mental impairment – Autism Spectrum Disorder – provision of care, treatment and housing – lengthy term in prison on remand because of absence of services
Legislation Cited:
Cases Cited:
Sentence: Non-Custodial Supervision Order
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APPEARANCES: | Counsel | Solicitors |
For the DPP | Mr M Fisher | Solicitor for the Director of Public Prosecutions |
| For the Secretary to the Dept for Health & Human Services | Ms M Wilson | Department of Health and Human Services Legal |
| For the Accused | Mr T Marsh | Victoria Legal Aid |
HIS HONOUR:
1 SM is 40. She has an established diagnosis of Autism Spectrum Disorder. That condition has been lifelong and is permanent.
2 On 22 March 2017, a jury quickly determined that SM was unfit to stand trial. On 27 June 2017, another jury found SM not guilty of three charges of resisting an emergency worker whilst on duty, by reason of mental impairment.
3 Finally, on 13 November 2017, SM was released on a Non-Custodial Supervision Order.
4 By that stage, SM had spent 1 year, 6 months and 16 days in prison for offences which most probably would not have attracted a term of imprisonment.
5 It is beyond the power of this Court to investigate how such a profound injustice came to pass. But the reluctance or refusal of State agencies to commit to the care, treatment and housing of SM highlights a major deficiency in the provision of services to a vulnerable and dependent member of the community who has been afflicted from birth.
6 It is necessary to detail some of the circumstances underpinning SM’s case.
The offending
7 On 2 March 2016, police were called to a house in Whittlesea occupied by SM’s parents. An intervention order had been taken out on 12 October 2015 which prevented SM from being within 200 metres of that address. Police, who attended the address, were told that SM had been aggressive and that her parents were frightened. SM was found in her bedroom with a cover over her head. A policeman asked SM what she was doing at the address and she told him to “Fuck off” and she spat in his direction.
8 SM continued to behave in an aggressive manner but finally got herself dressed and walked out of her bedroom before throwing herself on the floor. Four police officers were eventually able to handcuff her and she was carried outside the house and placed in the rear of a divisional van whilst screaming, yelling and spitting. Police then observed SM in the rear of the van kicking, screaming and hitting her head against the walls. An ambulance was called and she was then moved from the van to a stretcher and transported to the Northern Hospital. During the trip she required sedation. SM’s conduct towards police founds the first charge on the indictment of resisting an emergency worker whilst on duty.
9 The second and third charges arise from a further incident on 28 April 2016 when police were notified to attend the Whittlesea address. Upon their arrival, they told SM that she was not to be at the address. She became upset and aggressive. Police followed her into the house and she slumped on the floor and said that she was not willing to leave the premises. Police instructed SM to stand up and that they needed to handcuff her. SM responded by yelling and was “not making a whole lot of sense”. After some wrestling, SM was handcuffed and loudly screamed that she wanted to stay there and to be let go. When SM was taken to the Mill Park Police Station, arrangements were made for her to be assessed by a forensic medical officer. While sitting in the interview room, SM was very distressed and continued yelling for some hours.
10 While First Constable McKenna gave evidence about the incident on 28 April 2016 before the jury, SM interjected on a number of occasions. At one point she said:
“Maybe it's the European accent, okay, in (indistinct) she's a very bright girl, maybe someone who - someone ah who - become a flight ah - that it won't get my - my - well border security that's a better show (indistinct) people get upset when they see - well (indistinct) wouldn't you (indistinct) a sum - maybe Lara Bingle is better, but people they don't see it like that, there's -ah suffering from leukaemia and you've got medicine.” (Transcript 58, L23‑31)
11 Throughout these proceedings SM presented as quite disengaged from the court process and oblivious to the presence of a jury. She was assisted by an occupational therapist to whom she spoke incessantly. Recurrent themes seemed to include hair care, perfume, menstruation, the Royal Family and her parents. Her train of thought was rambling and disorganised. SM appeared to derive great comfort from the soothing effects of combing her hair and when she did so her volatility visibly lessened.
Psychiatric evidence
12 Dr Danny Sullivan, consultant forensic psychiatrist and the current Clinical Director at the Victorian Institute of Forensic Mental Health (Forensicare), gave evidence before the jury determining the issue of fitness. Dr Sullivan indicated that he had attempted to confer with SM, but she both refused to attend a video conference and, on a separate occasion, refused to exit her cell when he attended the prison on 5 September 2016. Dr Sullivan could hear SM yelling and sounding distressed. She was verbally abusive and refused to get dressed.
13 In those circumstances, Dr Sullivan relied upon a number of previous psychiatric reports and medical records at Dame Phyllis Frost Centre, where SM was held in the Marrmak Unit since being remanded in July 2015. That unit is a specialist mental health unit staffed by a full multi-disciplinary team from Forensicare, in addition to correctional staff. While held in that unit, SM has been involved in several episodes of aggression within the prison setting, including assaults on prison officers and threats made over her cell intercom.
14 The considered psychiatric consensus is that SM has an Autism Spectrum Disorder associated with considerable behavioural disturbance and borderline/mild intellectual disability.
15 SM was first remanded to the Dame Phyllis Frost Centre in July 2015, after she assaulted the staff at her Supported Residential Service. She was admitted to Marrmak Unit on 14 September 2015. Previously, she had been seen by the Victorian Dual Disability Service in 2009 and 2010, and had spent a period under observation in Thomas Embling Hospital under the Mental Health Act for diagnostic clarification. She was discharged from Thomas Embling back to Dame Phyllis Frost, as she no longer met the criteria for involuntary status after her diagnoses were confirmed.
16 In a report dated 19 September 2016, Dr Jeremy Resnick, the consultant psychiatrist at Marrmak Unit, noted that SM had been homeless and prison accommodation services could not arrange suitable accommodation catering to her needs. Disability Services indicate that she does not meet their criteria and she also does not satisfy the involuntary criteria under the Mental Health Act.
17 Dr Resnick expressed an overriding concern that suitable and appropriate accommodation had not been found for SM, and if she were to be released, she would more than likely be put up in a motel for a couple of days and then be homeless. Historically, once released from prison, she has returned to her parents’ home and has then been arrested after breaching the Intervention Order against her. When held in the Marrmak Unit in September 2016, SM was locked in her cell for 23 hours and allowed only one hour out of her cell due to her challenging behaviours.
18 A letter dated 23 June 2016 referred to a case conference between Forensicare, the Office of the Chief Psychiatrist, the local area Mental Health Service, and the Multiple and Complex Needs Initiative. Dr Sullivan referred to “a significant impasse”. Continued residence at her family home is untenable. Mental Health Services and Disability Services do not consider that they have appropriate interventions, or that she falls under the ambit of their legislation. SM’s circumstances have been discussed at high levels within the Department of Health and Human Services.
19 In a subsequent report dated 9 August 2017, Dr Douglas Bell, consultant psychiatrist and Director of Clinical Services (Prisons) at Forensicare, stated:
“Given that Forensicare is not expecting to have any ongoing involvement in [SM’s] support in the community, my involvement in the preparation of this report is in itself perhaps a reflection of the broader systemic service gap that exists in the support of needy individuals with neurodevelopment disorders and associated challenging behaviours such as [SM] who do not fit neatly into the existing inclusion criteria for community based services within either the mental health or disability services sectors.”
20 Dr Bell referred to a discussion held with the nurse unit manager of the Marrmak Unit on 19 June 2017. Ms Simone Lawrie informed him that SM’s self‑care is significantly impaired. She needs prompting to shower and to clean her cell. Her menstrual hygiene is considerably impaired. She is very selective in the foods that she eats and is maintained on a segregation regime because of her inability to remain settled and her disruptive behaviour in the presence of other prisoners.
21 Dr Bell did not formally assess SM’s cognitive function, but referred to previous assessments, which varied. The most recent neuropsychological testing conducted with SM was 35, assessing her full-scale IQ as being in the extremely low range and at 65.
22 Dr Bell considered that it was difficult to give a simple answer to the question as to whether, if released, SM would endanger herself or others. Her engagement in self-harm while incarcerated has been relatively minor and her assaults on others generally have occurred at times of heightened arousal and frustration.
23 Dr Bell participated in a case conference convened by Dr Neil Coventry, Chief Psychiatrist of Victoria, which was held on 9 August 2017, to discuss a plan for SM’s release into the community and the possible role that Mental Health Services may play in supporting her. The case involved the Chief Psychiatrist of Victoria, the Deputy Chief Psychiatrist, the Senior Clinical Advisor to the Office of the Chief Psychiatrist, the Clinical Director of Northern Area Mental Health Services, the Executive Director, Clinical Services, Forensicare, and the Director, Clinical Services, Prisons, Forensicare.
24 The unanimous consensus was that SM’s needs for care could not be adequately met within a mental health treatment setting, and there was unanimous support for a plan for SM’s reintegration into the community through substantial funding from the National Disability Insurance Agency. A support agency, EHRMA 360, has been appointed as the coordinating agency and will provide intensive social and programmatic support to SM on a 24 hour per day staffing model. A property in Heidelberg Heights has been arranged for SM, which requires some modest renovation and refurbishment. SM’s guardian from the Office of the Public Advocate will continue to work closely with EHRMA 360, and the north division of the Department of Health and Human Services, in progressing the National Disability Insurance Scheme plan. EHRMA 360 will work closely with the Office of the Chief Psychiatrist, the police and the local area Mental Health Service to develop a protocol around crisis response in the event of a significant deterioration in SM’s behaviour or clinical presentation.
25 Dr Bell informed the Court that he was supportive of the plan and expressed a regret that there was a systemic service gap in Victoria for people who would benefit from a secure residential setting specifically resourced to care for individuals with developmental disorders such as Autism Spectrum Disorders with associated severe disturbance of behaviour. Given that SM has been deemed to be ineligible for Residential Intellectual Disability Support Services and Residential Mental Health Services, the proposal developed through the National Disability Insurance Scheme is the best on offer.
Court orders
26 In those circumstances, and having regard to the s41 report provided by Dr Bell and the Certificate of Available Services, this Court made orders placing SM on a non-custodial supervision order, allowing her to be returned to the community with supports.
27 By way of observation, this Court endorses Dr Bell’s comments about the systemic service gap that exists to support people in SM’s situation. I commend those who have assisted SM in this prolonged endeavour to find appropriate accommodation and services.
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